ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20160017896 APPLICANT REQUESTS: * set aside of his Army National Guard (ARNG) involuntary honorable release from active duty (REFRAD) * reinstatement to active duty in a comparable federal capacity until qualifying for active duty retirement * grant back active duty pay/allowances until retired in 2003 and grant back retired pay * correct record to remove the non-regular reserve retirement effective 28 October 2005 and give credit for point and participation for active duty or inactive duty from July 2001 until 2005 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Legal Counsel Supplemental Statement * Memorandum of Concern, date 29 January 2001 * Memorandum of Probation, dated 3 April 2001 * Notification of Eligibility for Retired Pay, 3 April 2001 * Memorandum - Termination of SFC X___ X___ from FTRF, dated 30 April 2001 * Recommendation to Terminate – SFC X___ X___, dated 1 May 2001 * Recommendation to Terminate – SFC X___ X___, dated 22 May 2001 * Recommendation for Separation from Active Guard/Reserve Status, dated 29 May 2001 * Rescind Recommendation to Separate, dated 4 June 2001 * Rebuttal of Recommendation to Terminate from AGR Tour, dated 14 June 2001 * Recommendation for Separation, dated 6 July 2001 * Amendment Orders to AGR tour, #187-024, dated 6 July 2001 * DA Form 4187 (Personnel Action), dated 12 July 2001 (2) * DD Form 214 (Certificate of Release or Discharge From Active Duty), 15 July 2001 * DA Form 4950 (Army Good Conduct Medal), dated 29 June 2001 * DA Form 261 (Report of Investigation Line of Duty and Misconduct Status) dated 8 August 2001; with enclosures (34 pages) * Formal Line of Duty Determination Status - Approval, dated 18 September 2001 * Medical Travel Orders (3) * Award of the Armed Force Reserve Medal, # 672-5-1b, dated 27 November 2002 * Selection for Retention, dated 30 April 2003 * ARNG Current Annual Statement, dated 2 October 2003 * Notice of Chapter 13 Bankruptcy Case, Meeting of Creditors and Deadlines, dated 23 June 2004 (2) * NGB Form 22 (Report of Separation and Record of Service), dated 28 October 2005 * NGB Form 55 (Honorable Discharge Certificate), dated 28 October 2005 * Military Discrimination Complaint by SFC X___ X___, dated 3 May 2006 (19 pages) * DA Form 2166-7 (NCO Evaluation Reports) (22 pages) * DA Form 1059 (Service School Academic Evaluation Reports) (9 pages) * DA Form 638-1 (Recommendation for Award of Army Achievement Medal), dated 5 July 1993 * DA Form 4980 (Army Achievement Medal), dated 16 October 1993 * Army Good Conduct Orders (3) * Physical Fitness Awards (6) * NAVMC (Meritorious Mast), dated 7 November 1980 * Certificates and Letters of Appreciation (27) * DA Form 4856 (General Counseling Form) * NGB Form 22 (Report of Separation and Record of Service), 18 November 1979, Army National Guard * DD Form 214 (Certificate of Release or Discharge From Active Duty), 31 March 1982, United States Marine Corps FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2 The applicant states while in recruiting duty, a serious motor vehicle accident injured his neck and back (cervical and lumbar), aggravating a preexisting degenerative disk disease. He was placed on “light duty” for 6 weeks with no PT-testing/strenuous physical activities and remedial surgery was recommended. A formal line of duty (LOD) investigation was required to determine if return to duty was possible. Despite the motor vehicle accident, profile and severe/moderate disabilities, the Delaware Army National Guard (DE ARNG) said the applicant failed to meet his 3 minimum recruiting quotas, imposed probation, and processed him for involuntary termination from the Active Guard Reserve (AGR) at 17 years, 11 months, and 23 active days of service. He explains that he was denied sanctuary at 18 years and the Release From Active Duty (REFRAD) was an improper and gross injustice (see attached legal counsel supplemental statement). 3. The applicant provides: a. A supplemental statement and legal brief submitted on his behalf by legal counsel (JW) (see attached). b. Memorandum of Concern, dated 29 January 2001, from the Recruiting Sergeant Major (SGM) warning the applicant if he failed to make up his shortages and continued to fall behind, he would be placed on probation. c. Memorandum of Probation, dated 3 April 2011, from the Recruiting and Retention Manager (AC), which states the applicant was placed on probation for failure to meet requirements. d. Termination from the Full Time Recruiting Force (FTRF), dated 30 April 2001, from the Non-Commissioned Officer-in-Charge, recommending the applicant for termination from his recruiting tour. e. Recommendation to Terminate, dated 1 May 2001, from the Recruiting SGM, which states the applicant did not improve his performance and informed him that he had 15 days to provide comments or rebuttal. f. Recommendation to Separate from Active Guard/Reserve Status (Full-Time Recruiting), dated 29 May 2001, from the Adjutant General (FV), which approved the recommendation of separation. g. Recommendation to Separate from Active Guard/Reserve Status (Full-Time Recruiting), dated 4 June 2001, from the Adjutant General (FV), in which he withdrew his decision because it was brought to his attention that the applicant was not provided all the information and advice allowed or required in accordance with paragraph 6-5b (5), NGR 600-5 (The Active Guard Reserve Program Title 32, Full-Time National Guard Duty Management) to prepare a rebuttal to the Commander’s recommendation for separation. h. Rebuttal of Recommendation to Terminate from AGR Tour from the applicant, dated 14 June 2001 (see attached). i. DA Form 4950 (Army Good Conduct Medal) received dated 29 June 2001. j. Recommendation to Separate from Active Guard/Reserve Status (Full-Time Recruiting), dated 6 July 2001, from the Adjutant General (FV), which states that after careful review, he recommended separation. The applicant was relieved from his AGR tour effective 15 July 2001. k. DA Form 4187 (Personnel Action), dated 12 July 2001, which approved the involuntary REFRAD from the AGR program and request to cash in 59 days accrued leave upon separation. l. DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 2 August 2001, initiated by the Investigation Officer (JD) (see the attached investigation package (medical documentation, accident reports, sworn statement, etc.). m. Formal Line of Duty Determination Status, dated 18 September 2001, which states the Chief, NGB has reviewed the LOD Investigation Report and the finding was approved as “IN THE LINE OF DUTY”. n. Military Discrimination Complaint, Delaware Army National Guard, NGB: Case No. M-02530DE-A-01-03-R, dated 3 May 2006, filed by the applicant for alleged discrimination against him on the basis of his race in which personnel actions lead to his termination from the AGR program. 4. A review of the applicant’s service record shows: a. He had prior service in the ARNG (1978-1979) and U.S. Marine Corps (1979-1982) and enlisted in the ARNG on 14 June 1984. b. He entered the Active Guard Reserve (AGR) on 1 July 1986. He completed 6 AGR tours and was involuntarily REFRAD on 15 July 2001. His DD Form 214 shows he was released from active duty with an honorable characterization of service, under provisions of NGR 600-5, Chapter 6 (Separation), in effect at the time. He completed 15 years and 15 days of active service with an additional 2 years, 10 months, and 9 days of total prior active service. c. On 12 September 2002 and 30 April 2003, the Enlisted Qualitative Retention Board recommended the applicant as among the best qualified for continued retention in the DEARNG and he extended his current enlistment in the ARNG to 28 October 2005. d. On 28 October 2005, he was discharged from the DEARNG. His NGB Form 22 shows he was discharged with an honorable characterization of service, under provisions of NGR 600-200, Chapter 8 (Expiration of Term of Service), in effect at the time. He completed: * Net Service This Period: 21 years, 4 months and 15 days * Prior Active Federal Service: 2 years, 4 months and 13 days * Prior Reserve Component Service: 1 year and 3 months * Total Service For Pay: 24 years, 11 months and 18 days 5. On 14 March 2019, the NGB provided an advisory opinion and recommended approval of the applicant’s request for the following: a. Rescind the 2001 discharge and reinstate the applicant back to active duty until 2003 for regular retirement eligibility and include all back pay and allowances b. Remove the 2005 non-regular retirement from the Delaware Army National Guard and provide active duty credit points or inactive duty from July 2001 until October 2005 c. The NGB states the applicant’s AGR involuntary honorable REFRAD from 15 July 2001 was not processed in accordance with the guidelines established in NGR 600-5. Strict adherence to this regulation would have allowed SFC Traylor to reach sanctuary under the provisions of 10 U.S.C. 12686. He should be allowed to qualify for an active duty retirement and should be granted active duty back pay and allowances until retirement date of on and about August 2003 (see attached). d. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 6. By regulation, AGR soldiers will be involuntarily separated for cause from Full-Time National Guard Duty in accordance with NGR 600-5 (The Active Guard/Reserve (AGR) Program – Title 32, Full-Time National Guard Duty), Chapter 6-5 (Separation for Cause and Procedures), substandard duty performance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the NGB advisory’s finding that the applicant’s AGR involuntary honorable REFRAD from 15 July 2001 was not processed in accordance with the guidelines established in NGR 600-5 and recommendation that the applicant should be allowed to qualify for an active duty retirement and be granted active duty back pay and allowances until retirement date of on and about August 2003, the Board determined that there was an error and injustice which warranted correcting the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by: * rescinding the 2001 discharge and constructively reinstate the applicant to active duty until the applicant would have reached the 20 year active federal service milestone; therefore reaching the requisite time for a regular retirement * removing the 2005 non-regular retirement from the Delaware Army National Guard and provide active duty credit points or inactive duty from July 2001 until October 2005; * granting active duty back pay and allowances until retirement date of on and about 31 August 2003 X 6/13/2019 CHAIRPERSON Signed by: I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. National Guard Regulation (NGR) 600-5 (The Active Guard/Reserve (AGR) Program – Title 32, Full-Time National Guard Duty) prescribes policies procedures for management of Army National Guard (ARNG) soldiers in the AGR Program who serve on Full-Time National Guard Duty (FTNGD). a. Paragraph 6-1b(1) AGR soldiers within 2 years of becoming eligible for retired or retainer will not be involuntarily released from FTNGD unless release is approved by the Secretary of the Army. b. Paragraph 6-5b(a) AGR soldiers will be involuntarily separated for cause from Full-Time National Guard Duty in accordance with NGR 600-5, Chapter 6-5 (Separation for Cause and Procedures), substandard duty performance. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.